August 4, 2010

As a non-New Yorker, I do not have a very well-formed opinion of Mayor Michael Bloomberg, but his recent speech defending the so-called “Ground Zero Mosque” contains one of least impeachable arguments I have seen a public figure make in favor of church-state separation under the U.S. Constitution. Rather than positing a general founding secularism that is just inaccurate enough to give Christianists a foothold for their mythologizing, Bloomberg grounded the mosque’ s right to exist firmly on individual rights, especially private property rights:

The simple fact is, this building is private property, and the owners have a right to use the building as a house of worship, and the government has no right whatsoever to deny that right. And if it were tried, the courts would almost certainly strike it down as a violation of the U.S. Constitution.

Whatever you may think of the proposed mosque and community center, lost in the heat of the debate has been a basic question: Should government attempt to deny private citizens the right to build a house of worship on private property based on their particular religion? That may happen in other countries, but we should never allow it to happen here.

This nation was founded on the principle that the government must never choose between religions or favor one over another. The World Trade Center site will forever hold a special place in our city, in our hearts. But we would be untrue to the best part of ourselves and who we are as New Yorkers and Americans if we said no to a mosque in lower Manhattan.

It is hard to see how anyone with real conservative principles could take much issue with that private property argument. Not that I assume most of the criticism has come from principle — fear and fear-mongering are easier on the brain, and get a lot more attention.

Of course, Bloomberg’s speech was not free of historical mythology, especially about New York as the birthplace of religious toleration. (His cited basis for this claim is the locally semi-famous “Flushing Remonstrance” of 1657, in which officials in the titular Queens village begged Director General Peter Stuyvesant to permit a Quaker meeting. In response, Stuyvesant jailed the officials and abolished the town government, so it was not really a big win for religious freedom.) This site’s esteemed co-founder painted early New York as something completely other than an island of peaceful pluralism, and even Bloomberg himself covers the fact that New York did not in fact have religious toleration until after the Revolution: the Catholic Church was not allowed to open its doors until the 1780s.

All of which points up the problem with most claims that the United States was “founded on” any particular modern idea we might choose to advocate. There were multiple moments of founding, and all of those were the product of political processes that participants could and did ascribe many different meanings to. One does not have spend much time reading the founding generation’s constitutional debates and newspaper essays to realize that they never fully agreed themselves what the nation they were founding was being “founded on.”

As a for instance: the principle Bloomberg cites is certainly present in Jefferson’s Virginia Act for Establishing Religious Freedom (1786) and Madison’s first amendment to the Constitution, but many of the Founders (especially those who identified with the Federalist party) continued to believe that government needed to embrace and employ Protestant Christianity. It also seems safe to say that at least some founding lids would have flipped if someone had tried to open a mosque next door to Federal Hall in 1789. On the other hand, some might not have. The early presidents were all aware that the U.S. would be contact with cultures around the globe, and took occasion to single out Muslims as a group that Americans were not set against, at least in theory. Either way, it is not clear that the Founders and their colonial forebears really have much guidance to offer us. We in this century have to make these decisions for ourselves.

August 11, 2009

I hardly get to read the now-venerable H-Net email lists any more, but this morning I did catch a good post from H-LAW and H-SHEAR patiently explaining to the lawyers and right-wingers who swarm those lists on certain topics that the Constitution should not be read the way fundamentalist Christians read the Bible, as an “inerrant” text every word of which is divinely inspired. The author of the following is constitutional historian R.B. Bernstein, and he was responding to a post asking somewhat bitterly whether the last five words in Article I, Section 6, Clause 2 of the Constitution “are anything but a complete nullity,” as though it was news that there was some not eternally-applicable language in there:

I also think that the question, as it stands with its note of suppressed dismay and outrage at language that might be a nullity, targets a constitutional straw-man, a general assumption about the Constitution’s text that we ought to discard once and for all — that the text is not only authoritative but somehow transcendantly so, clear and dispositive far beyond the powers of mortal men.

The framers of the Constitution were human beings, working under very difficult conditions that sometimes meant that they did not write — or “frame” — with the focused, unwavering attention to clarity and guidance for posterity that posterity has too often attributed to them. One example, memorably elucidated by Professor Michael Stokes Paulsen, now distinguished university professor at the University of St. Thomas School of Law in Minneapolis, is the arrangement for who would preside in the case of a Senate impeachment trial of the Vice President. The constitutional text, read with care, indicates only one possible answer: the Vice President. The explanation is that the framers added the Vice Presidency to the Constitution at a very late stage of the game, and they may have meant to modify the language governing presiding officers in Senate impeachment trials to have the Chief Justice preside over the impeachment trial of a President or a Vice President, but they didn’t do a thorough enough mark-up.

Further, the reverence for the text of the Constitution that suffuses today’s constitutional and legal culture may not have been present at its creation, and for very good reason. The framers and their contemporaries lived in an era of rapid constitutional change, in which they all lived through three or even four forms of American constitutional governance (British empire to 1775 or 1776, Continental Congress from 1775-1776 to 1781, Articles of Confederation from 1781 to 1789, and Constitution from 1789 on); they also each lived through at least two and sometimes three different versions of state constitutional arrangements — charter or other colonial organization to 1775-1776, provision or first constitution in 1776, with at least one and sometimes two later constitutions, depending on the state. (The only exception is Rhode Island, which marked up its colonial charter to remove references to the British Crown and then did not do anything to revise or replace that reworked charter until the Dorr Rebellion in the late 1830s and early 1840s.) When Jefferson referred to the Articles of Confederation in late 1787 as a venerable fabric, he was not writing with the sarcasm that some later scholars have attributed to him. Given that rapid succession of constitutional frameworks on both state and national levels, it’s unlikely at best that the framers of the Constitution or their contemporaries thought that the Constitution proposed in 1787, ratified in 1788, and put into effect in 1789 would last more than a generation.

It may be true, as James Madison argued in an essay for the NATIONAL GAZETTE on 19 January 1792, that “every word [of the Constitution] decides a question between power and liberty,” but that is a description of the Constitution’s purposes and functions, not of its consistent literary excellence, and we would do well to recognize this fact.

Not my thoughts exactly — much more judicious — but perhaps this is the sort of cool reason that ahistorical abusers of the Constitution and the Founders might be able to heed? Probably not, but they should.

Reader BMC insists that I post on this clip from the Rachel Maddow show. (If you want to know what all the snickering is about, I’d suggest consulting an online slang dictionary, and I’m not responsible for what you find.)

I think the easiest thing to do would be to start picking out all the bad historical analogies and use it as an excuse to guffaw at the “Tea Party” movement that’s scheduled to demonstrate on April 15, 2009 (tax filing day). But I’m not going to do that–instead I’m going to try and be even-handed about this, and see if there’s anything to this grassroots conservative invocation of the Boston Tea Party.

Unfortunately, the ideology behind all of this seems rather vague. For instance, here’s what the website TaxDayTeaParty.com says on its front page:

The Tea Party effort is just a small piece of a much larger movement aimed at restoring the basic free-market principles our country was built on. The Constitution, for the most part, is being ignored by our current government and we intend on working together to correct the problem.

The Tea Party effort is a grassroots, collaborative volunteer organization made up of every day American citizens from across the country. We take pride in the fact that we’ve built a 50 state network of leaders and activists using nothing more than the internet, a few websites and a burning desire to restore freedom.

There’s not much there: the protesters are in favor of “basic free-market principles” and “freedom.” (Well, me too!) The site doesn’t say how the government is ignoring the Constitution, exactly–and if you dig a little further, it all goes back to Rick Santelli’s displeasure with the stimulus plan and the budget.

To the extent that the 2009 tax protests are part of a grass-roots movement, I think it’s fine to invoke the Boston Tea Party as your inspiration–although many suspect that corporate lobbyists and Rupert Murdoch’s Fox News have a lot to do with organizing and promoting this protest, and even Santelli himself apears to have been the frontman for a rightwing foundation. Still, if people are responding to the movement and even organizing local “tea parties” on their own, then that does accord with the local tea protests that sprang up in 1773-1774 in the wake of (and even immediately before) the Boston Tea Party of December 16, 1773.

One historical analogy that fails, however, is the idea that the Bostonians aboard the tea ships in 1773 were protesting higher taxes under the Tea Act. This is just wrong.

First, the British Parliament first passed the tax on tea in 1767, and Bostonians had in fact purchased plenty of tea bearing the threepenny-per-pound duty during the intervening years. New Yorkers and Philadelphians, who smuggled almost all of their tea from Holland and elsewhere, were in fact outraged at how little the New Englanders were able to stick to their “anti-tax” principles. In this respect, the Boston Tea Party was almost an apology.

Second, the Tea Act would in fact have lowered the price of tea for Americans–so the idea of invoking the “Tea Party” every time you think your taxes are too high is incorrect. Instead, the Tea Party protesters were energized by a series of principles: the government was propping up a monopoly company (the East India Company), the government was perpetuating an unjust tax (the 1767 tax on tea which had been confirmed in 1770), and the government was using the revenue from that tax to pay the salaries of judges and executive officials, thus rendering them independent of local legislatures.

Well, no, no one LIKES paying taxes, but most people recognize that you need some form of taxation in order to pay firemen and astronauts, defend the country’s borders, try to ensure that our food isn’t poisoned, etc. The point of protest against the Stamp Act, Townshend Acts, and Tea Act in 1765-1774 was that “taxation WITHOUT representation” would lead to slavery–in other words, the colonists believed that the British ministry was arbitrarily levying taxes on Americans when those Americans had no say in electing members of Parliament. In a democratic republican government, if you don’t like the level of your taxes or you don’t like how your tax money is spent, you have the power to peaceably “throw the bums out.” And you certainly have the First Amendment right to protest and rail against the stimulus and bailout. But the point is, the people of the Revolutionary Era had to fight for those rights to get rid of a constitutional monarchy–it’s hardly the case that paying taxes from a colony to a (partially hereditary) government that you don’t elect is the same as paying taxes to a government consisting of representatives and an executive that you DO have the power to elect.

On the other hand, to the extent that the tax protesters believe that their government doesn’t adequately represent them anymore, they’re arguing something more interesting. If we stipulate that the current execution of the United States Constitution has failed, and that reform of the Constitution is needed (which many on both the left and the right have argued), then legislation and executive policy under George W. Bush or Barack Obama (or whoever) really is the product of a flawed system, and therefore (perhaps) as unjust as anything passed by King George III and the British Parliament. Still, before making this argument, I’d recommend picking up (for instance) Edmund Morgan’s Inventing the People, on how Americans came to believe that a representative government DID have the legitimate right to make laws in a way that a king did not.

By all means, let’s have a civil debate about Obama’s policies in the midst of the economic crisis. And by all means, if we think that the problems we’re facing are due to underlying constitutional problems rather than the current legislative/executive solutions, then let’s talk about constitutional reform. But (although I realize it’s too late now) please don’t abuse the analogy to the Boston Tea Party, even if such abuse (again, from both the right and left) is almost as much of an American tradition as the Tea Party itself.

P.S. Also? Why even mention tea bags? In 1773 they were dumping loose tea into the harbor–the tea bag wasn’t invented until later–and you can still buy loose tea.